Metropolitan News-Enterprise


Thursday, July 14, 2011


Page 3


Insurer Held Not Required to Defend Man Who Attacked Friend


By a MetNews Staff Writer


An insurer owed no duty to defend or indemnify an insured who, while drunk, struck his friend in the groin during a bout of roughhousing, causing significant testicular injury, the Court of Appeal for this district has ruled.

Div. Seven, in a June 22 decision ordered published yesterday, concluded a deliberate act does not qualify as an “accident” just because the actor did not intent to cause injury and reversed a stipulated judgment against the State Farm General Insurance Company.

The issue arose after Patrick Frake tendered his defense in a personal injury action filed by John King, to State Farm under a renter’s policy that provided coverage for bodily injury “caused by an occurrence,” which the policy defined as “an accident.”

Frake told his insurer that the injury to King occurred during a 2004 trip to Chicago. During that trip, Frake said he, King and two mutual friends from high school had engaged in a form of consensual “horseplay” that involved “hitting each other in the groin” and other areas of the body.

Frake claimed that King had attempted to strike him as part of this game, which was “just like tag,” and he had retaliated by throwing his arm out to the side, and he “just happened” to hit King directly in the groin.

King alleged that as a result of this blow, he sustained a “hematocele on the right scrotum . . . epididymal head cyst…chronic regional pain syndrome/reflex sympathetic dystrophe [and] nerve injury” and asserted causes of action against Frake for negligence, assault and battery and intentional infliction of emotional distress.

State Farm agreed to defend this action with a full reservation of its rights. The case proceeded to trial, and a jury awarded King over $450,000 in damages.

After judgment was entered, Frake assigned King all assignable claims against State Farm arising from its failure to defend and indemnify him and the insurance company filed an action for declaratory relief, seeking a determination of its obligation to defend and indemnify Frake.

Frake and King, who were both named as defendants, filed cross-complaints alleging that State Farm’s refusal to defend or indemnify Frake constituted a breach of contract and a breach of the implied covenant of good faith and fair dealing.

Several months later, State Farm filed motions for summary judgment on its declaratory relief action and Frake and King’s cross-complaints.

Ventura Superior Court Judge Barbara A. Lane found that the term “accident,” as used in Frake’s policy, applied to deliberate conduct that resulted in unintentional injury and, as a result, there was a triable issue of fact regarding State Farm’s duty to defend. She further determined that because there was this potential for coverage, Frake and King had established that State Farm had a duty to defend. The parties thereafter entered into a stipulated judgment against State Farm in the amount of $670,000.

Writing for the appellate court, Justice Laurie D. Zelon disagreed with Lane’s findings, explaining under California law, the word “accident” in the coverage clause of a liability policy refers, not to an act’s consequences, but to the act itself.

“The language of the policy at issue here, which is the same language used in most standard liability policies, supports the conclusion that the term ‘accident’ refers to the insured’s conduct, rather than the unintended consequences of that conduct.,” she said.

Zelon concluded, “the mere fact that Frake did not intend to injure King does not transform his intentional conduct into an accident” since he admitted that he intended to strike King in the groin area and there was no dispute that King suffered injuries as a direct result.

Presiding Justice Dennis M. Perluss and Justice Frank Y. Jackson joined Zelon in her opinion.

James R. Robie, now deceased, along with Bernadine J. Stolar and Natalie A. Kouyoumdjian of Robie & Matthai represented State Farm. Lisa Perrochet and Mitchell C. Tilner of Horvitz & Levy also submitted an amicus brief for the insurer. Robert J. McCulloch and Jeffrey Isaac Ehrlich served as counsel for Frake.

The case is State Farm General Insurance Company v. Frake, B223865.


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